State v. Weare

Superior Court of Maine, Cumberland

August 2, 2017

STATE OF MAINEv.NATHAN WEARE, Defendant

ORDER

Thomas
D. Warren Justice, Superior Court

Before
the court is a motion to suppress by defendant Nathan Weare.
A hearing was held on July 20, 2017. Weare was stopped while
driving a vehicle in South Portland at around 1:35 am on New
Year's Day and was subsequently charged with operating
under the influence of marijuana.

The
primary evidence at the hearing consisted of the following:
(1) the testimony of Officer Johns of the South Portland
Police Department, (2) a video from the cruiser camera of
Officer Theriault (State's Ex. 2), which showed the
interaction between Officer Johns and Weare at the scene and
included some audio, (3) audio from the cruiser camera of
Officer Johns (State's Ex. 3) which begins several
minutes after Officer Johns approached the Weare vehicle and
which lasts until Weare's arrest at the scene, and (4)
audio from the cruiser camera of Officer Johns (also
State's Ex. 3) covering the time period at the jail from
2:25am until 3:22am.[1]

The
State has the burden of proof by a preponderance of the
evidence on all of the issues raised by the motion. The court
finds as follows:

1.
Shortly after midnight on New Year's Day there was a
small transformer fire on Highland Avenue between Scamman
Street and Plymouth Road in South Portland. South Portland
Officers Theriault and Johns set up a roadblock on Highland
Avenue to allow the Fire Department to extinguish the fire
and for CMP to repair the transformer. Officer Theriault
placed his cruiser across both lanes of Highland Avenue at
the Scamman Street intersection with his blue lights
flashing, and Officer Johns placed his cruiser across both
lanes of Highland Avenue at the Plymouth Road intersection
with his blue lights flashing.

2. At
approximately 1:38am a vehicle driven by Weare approached
Theriault's cruiser but did not stop. Instead it went to
the left and squeezed past Theriault's vehicle and
continued along Highland Avenue even though Theriault flashed
his headlights and honked his horn. When the Weare vehicle
reached the Plymouth Road intersection, where Highland Avenue
was blocked by Officer Johns's cruiser, the Weare vehicle
stopped and Officer Johns approached the vehicle. Around that
same time, the CMP truck left the scene, and Officer
Theriault drove down to where the Weare vehicle had been
stopped.

3.
There is no audio from the first few minutes of the
interaction between Officer Johns and Weare. When Johns
approached and asked Weare for his driver's license,
registration, and proof of insurance, Johns smelled a strong
odor of marijuana. Johns asked Weare whether he had ingested
any marijuana or had any marijuana, and Weare told him he had
smoked marijuana six hours earlier and voluntarily showed
Officer Johns a pipe with burned residue.[2]

4. When
Officer Theriault approached the vehicle, Theriault asked
Weare why he had passed the roadblock and Weare stated that
he had not realized that the road was blocked. When Theriault
returned to his vehicle, there was further conversation
between Johns and the occupants of the vehicle that is not
audible but Johns thereafter can be heard demanding
"where's the weed?" in a fairly loud manner and
threatening to search the car and summons everyone inside if
marijuana was found. At that point Weare produced some
marijuana and gave it to Johns.

5.
Shortly thereafter Officer Theriault asked the passengers in
the vehicle for identification and when it turned out that
they were minors, Theriault and Johns began attempting to
call their parents because of a South Portland ordinance
imposing a curfew on minors under 16 or 17 not accompanied by
parent or guardian.

6.
Johns then asked Weare to step out of the vehicle and
performed an HGN test with one addition - Johns moved his
finger very close to the bridge of Weare's nose to see if
Weare's eyes crossed. At that point Johns observed that
Weare's eyes did not cross (lack of convergence) which
can be - but is not necessarily - an indicator of impairment
from marijuana. Johns did not note any alcohol clues on the
HGN test.[3] The HGN test was performed approximately
12 minutes after Officer Johns first approached Weare's
vehicle.

7.
Thereafter the officers consulted with one another. Theriault
stated that he was "just going to kick them loose,
" but Johns stated that Weare was "still
high." Johns then proceeded to a further OUI
investigation by administering walk and turn and one leg
stand tests. On the walk and turn Weare attempted to start
early and had some difficulty with his balance, raising his
arms. On the one leg stand Weare was steadier but raised his
arms once.

8.
Johns then placed Weare under arrest and transported him to
the jail. This occurred around 2:02am, approximately 25
minutes after Johns first approached Weare's vehicle.
Weare was at no time given a Miranda warning after his
arrest. The State agreed at the motion hearing that at trial,
it would not seek to offer any statements by Weare that were
made after his arrest.

9. The
record does not reflect exactly when Officer Johns and Weare
arrived at the jail but they were at the jail by 2:25am when
Officer Johns told Weare that he would perform an intoxilyzer
test although he anticipated Weare would blow a 0.00. That
test was performed with the expected 0.00 result, and Officer
Johns then began seeking an officer certified as a Drug
Recognition Expert (DRE) to perform an evaluation of Weare.
During the time at the jail Weare and Officer Johns had some
discussions that included statements by Weare that he did not
feel under the influence and statements by Officer Johns that
he had been certified as a DRE in California before joining
the South Portland Police Department 9 months earlier and
that he was certain Weare was under the influence. All of
this discussion, however, was in a conversational tone and
Officer Johns was not hostile and did not raise his voice.

10. At
around 2:57am Weare inquired what would happen if a DRE
officer could not be found and Johns replied that
"you'll probably just provide a urine sample."
Shortly after 3:05am Officer Johns directly asked Weare
whether he was willing to provide a urine sample, and Weare
answered "sure." Weare added that he did not think
he could urinate with someone watching him. Officer Johns
agreed that while the door to the bathroom would be open,
Weare would not be watched while he provided a sample.
...

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